The ICJ Should Have Been Harder on Serbia

By David Luban

This week, the International Court of Justice released a disappointingly wishy-washy ruling on whether Serbia bears responsibility, as a state, for genocide in Bosnia during the Bosnian war. Hannah Arendt famously complained 45 years ago, at the trial of Adolf Eichmann, that international law had yet to come to grips with the notion of a criminal state. This week's ICJ decision raises the question anew. Can the government as a whole-rather than individual officials-be brought to account for monumental crimes? The ICJ ruling offers a far from coherent answer.

To be sure, the ICJ found that in principle states can be held responsible for violating the 1951 Convention Against Genocide. But it cleared Serbia of genocide or complicity in genocide, despite the country's notorious backing of a proxy army, the Bosnian Serb militia known as the VRS. The VRS committed numerous atrocities in its 1992 campaign of ethnic cleansing against Bosnian Serbs and Croats-atrocities that included the massacre of 7,000 Muslim men and boys at Srebrenica, and the establishment of Nazi-style concentration camps and "rape motels." All of this has been exhaustively documented and adjudicated by the International Criminal Tribunal for the Former Yugoslavia. The ICJ had the ICTY materials at its disposal. The court's exoneration of the Serbian government nonetheless-and after the case dragged on for 14 years-undercuts the principle of state responsibility that it endorsed. If Serbia's actions don't amount to state complicity in genocide, it is hard to envision what would.

The court's reluctance to hold a state accountable for crimes goes to the very heart of international law, which is itself a creature of states. States don't like to be accused of criminal wrongdoing. It offends their sovereign dignity and majesty. Nuremberg experimented with declaring organizations, like the SS, to be criminal. But that experiment was a failure: The judges were skeptical of the idea of collective guilt and trimmed the law back substantially. All the subsequent international criminal tribunals (Yugoslavia, Rwanda, the International Criminal Court, Sierra Leone, Cambodia) have prosecuted only individuals.

The law against genocide is also partly to blame. It defines the crime narrowly and in a way that makes it difficult to prove. The Genocide Convention says that genocide requires a specific intent to destroy a protected group, in whole or in part, as such. (Protected groups are national, ethnical, racial, or religious groups.) As such means "destroy them because they are who they are, not for any other reason." To prove genocide, prosecutors thus have to show that a massacre was specifically intended to destroy the victims as a group-not to grab their land, or as part of a military strategy, or to teach rebels a lesson. If prosecutors can't make this showing, a large-scale ethnic massacre can still be a "war crime" or a "crime against humanity." But it's not a genocide.

The legal definition has thus come loose from what the word means to everyone other than a handful of international lawyers, as I've argued in a recent article. Prosecutors in the Yugoslav Tribunal have seldom prosecuted for genocide, because the other crimes are invariably easier to prove. And the narrow definition has other bad effects. A couple of years ago, a U.N. commission concluded that Darfur wasn't a "genocide" because there was no evidence of specific intent to destroy the non-Arab "black" tribes in Darfur "as such." The result was reduced political pressure to do something about Darfur.

In its ruling this week in Bosnia v. Serbia, the ICJ found that there wasn't enough evidence of specific intent to commit genocide for anything that occurred in the Bosnian war other than the Srebrenica massacre. That made it easy to find that the Serbian government lacked responsibility for genocide, because it hasn't been tied to the Srebrenica massacre. Instead, the court found that Serbia violated a lesser section of the Genocide Convention-Article 1, which requires that states "undertake to prevent and to punish" the crime of genocide-in part because the government failed to capture Gen. Ratko Mladic, the architect of Srebrenica, and turn him over to the Yugoslav Tribunal for trial.

For this, the court chose the least invasive possible remedy. The Serbian government must catch the Srebrenica bad guys (meaning Mladic) and turn them over. Serbia need not pay compensation, nor even give "a direction to provide assurances and guarantees of non-repetition." The key to the court's decision is the narrow choice to find genocide only at Srebrenica, rather than in the entire gruesome VRS campaign against the Bosnian Muslims.

Judge Awn Shawkat Al-Khasawneh of Jordan dissented and got it right. He criticized the ICJ for treating the evidence in a piecemeal, disconnected, myopic way, so that overwhelming evidence of Serbian support for ethnic cleansing accomplished through ethnic killings didn't constitute specific intent to commit genocide or even complicity in genocide. This is like an American court exonerating a financial backer of the Ku Klux Klan from a charge of complicity in a hate crime, even though he bought the guns, ropes, gasoline, and bed sheets. Doesn't it seem pretty clear that those purchases are evidence of complicity in a hate crime the Klan then commits?

The same anti-Muslim atrocities happened over and over again in the camps. Intent can be inferred from the pattern, and given Serbian government support for the VRS, the pattern should suffice to support a charge of state complicity in genocide. That was what Bosnia argued. Without a smoking-gun document or its equivalent, consistent patterns of action are the best evidence we have of official plans and intentions. In a prosecution of an individual, it might be impossible to infer specific intent to commit genocide from the fact that an atrocity was committed. But when we look at what many actors did and note the consistency with which they did it, the evidence of a genocidal plan becomes stronger and stronger. This is Judge Al-Khasawneh's argument.

There is a silver lining in the majority opinion. But for the most part, the ICJ's decision is evidence of its timidity. Casting a shadow is Nicaragua v. United States, the 1986 case in which Nicaragua sued the United States over responsibility for the Contras. The United States objected to the ICJ's jurisdiction, and when it lost that battle-and then lost the case on the merits-it stopped participating and pulled out of the ICJ altogether. The lesson is clear: Bold ICJ decisions can have awkward repercussions. The New York Times reports that this week's ruling "hews close to the political wishes of Western countries that want to pull Serbia into a wider Western European community." ICJ President Rosalyn Higgins denies "that the court has been seeking a political compromise." But it's hard not to suspect that the ICJ did its utmost to avoid pinning the world's most inflammatory label on Serbia. It is still a place, after all, where powerful nationalists insist that the Srebrenica massacre never happened and that international prosecutions are a Western plot.

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